THE FISHERIES DISPUTE 



A Suggestion for its Adjustment by Abrogating' 

THE Convention of i8i8, and Resting on 

THE Rights and Liberties Defined 

IN THE Treaty of 1783 



A LETTER 



THE HONOURABLE WILLIAM M. EVARTS 

OF THE UNITED STATES SENATE 
BY 

JOHN JAY 

LATE MINISTER TO VIENNA 



SECOND EDIT/ON 



NEW YORK 

DODD, MEAD & COMPANY 

PUBLISHERS 
1887 



-\0 



^^ 






ROWS 

PRINTING AWD BOOKBINDING COMPAN*.' 

NEW YORK. 



THE FISHERIES DISPUTE. 



Dear Mr. Evarts : Tlie necessity of some decisive ac- 
tion by the Government to arrest the vexatious and harass- 
ing treatment of our fishermen by the Canadian authorities 
is recognized by the country, as well for the protection of 
our own rights as for the avoidance of a breach of our 
harmonious relations with Great i^ritain ; and the passage 
in the Senate by 46 to 1 of Senator Edmunds' bill to au- 
thorize the President to protect and defend the rights of 
American fishing vessels, American fishermen, and Ameri- 
can trading and other vessels in certain cases for other pur- 
poses, seems to show that the Senate shares the judgment 
of the country that a continuance of the policy under which 
such annoyances are possible would be a mistake, and that 
their further toleration is forbidden by a decent regard to 
the rights of our fishermen, and to the peace, interest, and 
dignity of the nation. 

Upon the question how far the bill is calculated to dis- 
turb our friendly relations with Great Britain, the New 
York Herald reports your views as follows : 

Mr. Evarts argued in support of the bill, which he said, was not 
in the nature of a menace or tending at all in that direction. It was 
the duty of Congress to take the subject away from local disturbance, 
irritation, and resentments. So far from the bill tending to war or 
tending to umbrage, it was intended to have a contrary cflfcct. It was 
an immediate announcement to the people that they had only to trust 
their protection, not to personal resentment, but to the Government of 
the United States, and when the opening summer should bring about 
the recurrence of the fishing season and of the fishing dangers, the 



4 THE FISHERIES DISPUTE. 

question would be removed from that theatre of coUision ; and, if not 
concluded, it would be under the contract of both governments, in a 
deliberate consideration of what should be done in order to have sta- 
bility of intercourse and in order to give stability to the peace and 
dignity of the two nations, the United States and Great Britain. 

I observe an intimation in the papers that some proposi- 
tion has been made by our Government to which it is await- 
ing a reply, and I am sensible of the delicacy with which 
one not thoroughly aware of the state of a negotiation, 
should venture to offer advice. This question of the fisher- 
ies, however, is peculiarly a question for the people, and the 
recent reports in the Senate and the House, the correspond- 
ence on the subject submitted by the President on Decem- 
ber 8, 1886, and again on February 8, 1887, with the replies 
of the Secretary of the Treasury to the House of December 
14, 1886, and of February 5, 1887, and the letter of Secre- 
tary Bayard to the Senate of January 26, 1887, with the 
bills proposed by Senator Edmunds and Mr. Belmont, the 
resolution of Mr. Gorman, and the bill proposed by Secretary 
Manning, have brought the pending questions so fully be- 
fore the country, with the facts and correspondence to so 
late a day, that a suggestion oftered for consideration and 
based upon historic data and recent facts, will hardly I think 
be regarded as untimely or improper. 

Retaliation as a Remedy, Temporary and Incom- 
plete. 

The difficulty which we propose to reach by retaliation 
seems to arise in great part from a seemingly irreconcilable 
difference of opinion between the government of Great 
Britain and that of the United States, touching the extent 
of the rights of our fishermen under the Convention of 18 18. 
And if that Convention is really the source of the trouble 
which we have had with intervals during seventy years, is 
retaliation in truth the most complete and proper remedy ? 
or may not a threat have upon the English people the effect 



THE FISHERIES DISPUTE. 5 

it would have upon ourselves, disposing us to fight rather 
than to argue ? or if we are forced to retaliation as a last 
resort, should not its sugjjestion be accompanied by some 
proposition looking to a f.indamental and permanent read- 
justment of our rights? 

When Mr. Bayard, unde ■ the date of November 6, 1886, 
referring to the seizure of tj 2 Marion Grimes, held that the 
Dominion Government wis seeking by its action in the 
matter to " invade and cestroy the commercial rights and 
privileges secured to the citizens of the United States under 
and by virtue of treaty stipulations with Great Britain," 
the Governor-General of Canada, the Marquis of Lans- 
downe held that that statement was " not warranted by the 
facts of the case," and thut the two vessels that had been 
seized were " fishing vessels and not traders, and therefore 
liable, subject to the guiding of the courts, to any penal- 
ties imposed by law for the enforcement of the Convention 
of 1818, on parties violating the terms of that Conven- 
tion." 

Nor was this simply the judgment of the Governor-Gen- 
eral of Canada, for Earl Rosebery wrote : " I have to add 
that Her Majesty's Government entirely concurs in the view 
expressed by the Marquis of Lansdowne."' 

If the judgment of the British Government on that point, 
based apparently on a system of interpretation which is 
held at Washington to be so narrow, strained, and technical 
that it ignores not only the motives which induced Ameri- 
cans to accept the Treaty of 1818, but ignores also the rights 
and the duties that belong to international comity and the 
law of nations — if that'judgment has not been changed by 
the able and courteous arguments of Mr, Bayard and Mr. 
Phelps, and the grave reports of Senator Edmunds and Mr. 
Manning, is it likely to yield more readily when the calm 
of diplomacy shall have been interrupted by the irritating 
measures of retaliation, which Senator Edmunds' bill, or the 
yet more stringent bill by Mr. Belmont in the House, ex- 
tending to Canadian locomotives and cars, goods, wares, 



6 THE FISHERIES DlS,PUTE. 

1 

and merchandise, authorizes the president to proclaim ? 
Will it be more easy to come to an amicable understanding, 
after the vessels of the British Dpminion in America have 
been excluded from our ports, 6r Canadian railway trains 
stopped at the border, in retaliation for the treatment of our 
fishermen ; a treatment which , he Ministers of Canada and 
Great Britain declare is justifiec^ by the strict letter of the 
Treaty of 1818, however, in thdi eyes of Americans, un- 
friendly, inhospitable, or even barbarous ? 

British Misconstruction of the Treaty of 18 18. 

On one point both Mr. Bayarri and Earl Rosebery, Mr. 
Phelps and Lord Salisbury seem to be agreed, that the 
Treaty of 1818 is the law on the interpretation of which de- 
pends the decision of the question in dispute. But the re- 
cent correspondence on the rights of American fishermen, 
submitted by the President to the Senate on December 8, 
1886, shows that this apparently simple question of inter- 
pretation is, in the view of the Department, fairly influenced 
by the series of laws and regulations referred to by Mr. 
Bayard, affecting the trade between the British Provinces of 
North America and the United States, which have since 
been respectively adopted by the two countries, and have 
led to amicable and beneficial relations between their re- 
spective inhabitants, building up a trade between the two 
countries founded on mutual interest and advantage, and 
establishing a reciprocal liberty of commerce. The ques- 
tion is next, as Mr. Bayard and Mr. Manning have both 
shown, improperly subjected, as regards American rights, to 
acts of colonial legislation under a supposed delegation of 
jurisdiction by the Imperial Government of Great Britain, 
and seemingly intended to include authority to interpret and 
enforce the provisions of the Treaty of 1818. The effect of 
the colonial legislation and colonial executive interpreta- 
tion, if executed according to the letter, would be, as Mr. 
Bayard contends in his letter to Sir L. B. Sackville West, 



TH^ FISHERIES DISPUTE. 7 

of May lO, 1886, t/> expand tlic restrictions and renuncia- 
tions of the Trea:y of 18 18, and to further diminish and 
practically destroy the privileges expressly secured to 
American fishin;; vessels to visit the inshore waters for 
shelter, the repai- of damages, the purchase of wood, and 
the obtaining of 'vater. 

The seizure and detention, for instance, by the Canadian 
authorities of the David J. Adams, which Mr. Bayard in 
his note to Sir Lionel B. Sackville West, of May 20, 1886, 
characterized as " unwarranted, irregular, and severe," ap- 
peared to rest on charges : 

I. Of violating' the Treaty of 1818. 

II. Of alleged violation of the Act 59 George III. 

III. Of alleged violation of the colonial Act of Nova 
Scotva of 1818, and 

IV. Of alleged violation of Canadian Statutes of 1870 
and 1883. 

And Mr. Bayard, in his telegram of May 22d, to Mr. 
Phelps, refers to " vexatious interpretations, and actions of 
local authorities which can only hinder an amicable award."' 
On June 14th, Secretary Ba}'ard, in regard to the allegations 
that American vessels would not be permitted to land fish 
at Halifax for transportation in bond across the Province, 
and that American vessels had been warned to keep outside 
of a line drawn from headland to headland, said : 

Against this treatment I must instantly and formally protest as an 
unwarrantable interpretation and application of the Treaty by the of- 
ficers of the Dominion of Canada and the Province of Nova Scotia ; as 
an invasion of the laws of commercial and maritime intercourse exist- 
ing between the two countries, and a violation of hospitality ; and for 
any loss or injury resulting therefrom the Government of Her British 
Majesty will be held responsible. 

In reply to your complaints of outrages, the British Minister at 
Washington has advised us that the matter has been referred to the 
Dominion Government, and Mr. Phelps at London has been informed 
that no further steps can be taken about the cases before the Canadian 
courts have been adjudicated. 



8 THE FISHERIES DISPU'J^E. 

The question, therefore, of the rights \:)f American fisher- 
men under the Treaty of 1 8:8, is made ht- the British Gov- 
ernment to depend not altogether on thauTreaty alone, but 
partly, as it would seem, on a statute of George III., on 
colonial acts of the British Provinces, the' rulings of Cana- 
dian courts, and the proclamation and acta of colonial offi- 
cers — all assuming to be based on the provisions of that 
Treaty. This fact justifies a careful consideration of the 
relative advantages and disadvantages w]iich result to us at 
this moment from the Convention which for so long a time 
has played a principal part in this reg>?table and chronic 
controversy — a treaty which under the in| erpretation placed 
upon it by Canadian and British officials is being used not 
as a shield to protect our fishermen in the enjoyment of their 
rights, but as a weapon for the interruption of their business 
and their helpless subjection to wrong and humiliation. 

This state of things, which by no means accords with the 
American idea of national fitness, and which it is proposed 
temporarily to correct if necessary by retaliation, clearly re- 
quires a thorough and permanent change, based not on re- 
taliation for wrong, but on clear principles of right ; and we 
find two propositions from British sources looking to a 
peaceful remedy which deserve respectful consideration. 

Offers of Negotiation and Arbitration. 

T/ie one is a proposition from Lord Rosebery for a frank 
and friendly consideration of ihe whole question with a view 
to the revision of the Treaty of i8i8. 

The second is said to be a semi-official proposition from 
the Montreal Gazette, the official organ of the Dominion 
Government of the 25th of January, which said : " If, instead 
of resorting to coercive measures, the United States Con- 
gress could consent to ARBITRATION, it would adopt the 
manlier and more dignified course." 

Either of these plans, adopted by mutual agreement, upon 
a basis that would certainly secure the original rights and 



THE I'ISIIEKIKS DISPUTE. 9 

interests of our fishermen as recognized by Great Britain in 
the Treaty of Peace, would be preferable to any measure 
that might bear the character of opposition or retaliation. 
But without an admitted basis of principle and right dis- 
tinctly formulated, as were the three rules laid down for the 
Geneva Arbitration, and to which Great Britain wisely gave 
her adhesion, it would seem idle to expect a satisfactory 
measure of justice either from negotiation or arbitration. 
Our recent negotiations have only served to make more 
clear the fact that the two governments look at the rights of 
our fishermen from different stand-points ; and without an 
agreement in advance upon the rules by which the arbitra- 
tors are to be guided, an award would probably dissatisfy 
the defeated party, and serve as little to commend arbitra- 
tion to thoughtful English or Americans as the American 
claim for indirect damages at Geneva, or the award of 
the Belgian umpire at Halifax. 

There should be no difficulty in agreeing on a basis 
for either negotiation or arbitration, in the shape of rules 
declaring the right of our fishermen in language that even 
our Canadian friends can understand, when it is remembered 
that their violation of the Treaty of i8i8 has given us a right 
to abrogate that treaty ; and that its abrogation would restore 
our rights and liberties under Article III. of the Treaty of 
Peace in 1783, which were renounced and surrendered by 
the Treaty of 1818, but which would revive were the Treaty 
of 1818 abrogated ; precisely as the latter treaty, after be- 
ing suspended by the adoption of the Reciprocity Treaty 
of 1854, was revived by its termination in 1866; and after 
being again suspended by the Treaty of 1871, was again re- 
stored by its termination in 1885. If our British friends 
should have a doubt upon this point, and be inclined to 
think that our regard for the sanctity of treaties will induce 
us to pardon their violation, or that the exploded sugges- 
tion that our ancient fishery rights recognized and defined 
at the peace, were lost by the war of 18 12, a glance at the 
law and the facts, at the testimony of history and the opin- 



lO THE FISHERIES DISPUTE. 

ions of English lawyers, should easily satisfy them on these 
points. 

The British Proposition to Revise the Treaty. 

The note of the Earl of Rosebery to Mr. West, under 
date of July IQ, 1886, declining to discuss the competency 
of the Canadian authorities under the existing statutes, im- 
perial or colonial, to effect the seizure of American vessels 
complained of, as a question which he says is occupying the 
courts of law, continues : "I cannot, however, close this 
despatch without adding that Her Majesty's Government 
entirely concurs in that passage of the report of the Ameri- 
can Privy Council, in which it is observed that ' If the pro- 
visions of the Convention of 1818 have become inconvenient 
to either contracting party the utmost that good-will and 
fair dealing can suggest is that the terms shall be reconsid- 
ered.' " Lord Rosebery adds : 

It is assuredly from no fault on the part of Her Majesty's Govern- 
ment that the question has now been relegated to the terms of the 
Convention of 1818. They have not ceased to express their anxiety 
to commence negotiations, and they are now prepared to enter upon a 
frank and friendly consideration of the tv/iole question, with the tnost 
earnest desire to arrive at a settlement consonant alike with the rights 
and interests of Canada and the United States. 

Does not this suggestion, originating with the Canadian 
Privy Council and entirely concurred in by Great Britain, 
point to the fact from which we do not dissent, that the 
Convention of 1818 lies at the bottom of the difficulties 
which it is proposed to correct by Presidential proclamation, 
and that that Convention must be satisfactorily revised, or 
entirely abrogated, before we can reach a satisfactory and 
permanent settlement of the fisheries question. 

Admitting Lord Rosebery to be in the right in con- 
tending that it was from no fault on the part of Her Majes- 
ty's Government that the question has been relegated to the 



THE FISHERIES DISPUTE. II 

terms of the Convention of 1818, and recognizing tlic frank 
and friendly assurance of their most earnest desire to arrive 
at a settlement consonant with the rights and interests of 
the United States, it will be less easy to defend the British 
Government from the grave responsibility of having persist- 
ently instigated, first at Ghent, and again at London, the 
adoption of the Article of 181 8 by their persistence in the bold 
assertion, which British law officers had shown to be un- 
sound, that we had lost by the War of 18 12 our original and 
ancient rights to the fisheries as recognized and defined in 
the Treaty of Peace, and by their acting in advance on that 
groundless suggestion as soon as the war had closed, by 
warning and seizing our fishing vessels without reason and 
without law. 

Nothing, therefore, could more become the noblest char- 
acteristics of the British Government and the British people, 
than a frank and practical exhibition of the honorable desire 
expressed by Lord Rosebery to arrive at a just settlement 
of the question. If they assent to the abandonment of the 
Convention of 1818, fraught as it is with errors of law and 
wrongful acts, and which for two generations has crippled our 
fishermen in their ancient rights, and subjected the Repub- 
lic to vexations and affronts which have become so intoler- 
able that the gravest legislative body in the Republic is 
ready for retaliation-; if they assent to a return to the fair 
division of the fisheries made by the two empires at the 
peace of 1783 — and when they recall the part borne by 
Americans, and especially the New Englanders, during 
two centuries in securing the fisheries, they may well ad- 
mire the moderation of our demands and the generosity of 
our concessions — there would seem to be no shadow of rea- 
son why the entire question of the fisheries should not be 
arranged with good-will on all sides ; and with a common 
disposition to advance in our commercial arrangements the 
mutual interests of Great Britain, Canada, and the United 
States. 

A "lance at the recent treatment of our fishing vessels 



12 THE FISHERIES DISPUTE. 

will help to show whethci lli^-ie is any reasonable prospect 
of an amicable arrangement, especially in view of the pro- 
posed measures of retaliation, on the basis of the Article of 
i8i8, as interpreted by the British Government, and will 
exhibit the solid grounds for the belief expressed at Wash- 
ington that that convention has been directly violated by 
the British both in legislation and in practice. 

The Recent Treatment of American Fishing Ves- 
sels. 

Looking at the correspondence, it would seem as if every 
attempt on our part for an amicable arrangement had be- 
come hopeless through the irreconcilable difference of view 
as to the rights of Americans under the Treaty of i8i8, and 
an apparent confidence on the part of our Canadian neigh- 
bors, which seems to have increased rather than diminished 
since our payment of the Halifax award, that we have no 
rights to protect, and no treaty stipulation under v/hich we 
can claim protection. The peaceful efforts of our Govern- 
ment have been ineffectual, and their just hopes have been 
disappointed. In April, 1886, Mr. Bayard wrote to Messrs. 
Gushing and McKennay, of Portland, who had fishing ves- 
sels ready for the Banks, and who had asked if their fishing 
vessels could call at Canadian ports for men and be pro- 
tected in so doing : 

... I expect to obtain such an understanding as will relieve our 
fishermen from all doubts or risk in the exercise of the ordinary com- 
mercial privileges of friendly ports, to which, under existing laws of 
both countries, I consider their citizens to be mutually entitled free 
from molestation. . . . 

On July 26, 1886, President Cleveland sent to the Sen- 
ate a Report of the Secretary of State relating" to the seiz- 
ures and detentions of American vessels in Canadian 
waters, in which Mr. Bayard referred to the correspon- 
dence then pending as one " which it is believed must soon 
terminate in an amiable settlement mutually just and hon- 



THE FISHERIES DISPUTE. 1 3 

orable and therefore satisfactory to both countries and 
their inhabitants." 

But if wc look at the correspondence submitted by the 
President on December 8, 1886, and again on February 8, 
1887, we find the treatment of our fishermen more intoler- 
able than ever. 

The case of the Rattler, seeking shelter from a storm in 
the harbor of Shelburne, Nova Scotia, induced Mr. Bayard 
to say to Mr. Hardinge (August 9, 1886): "The hospi- 
tality which all civilized nations prescribe has thus been 
violated and THE STIPULATIONS OF A TREATY GROSSLY IN- 
FRACTED.'' 

In the case of the Shiloh and Julia Ellen, Mr. Bayard 
(August 18, 1886) protested "against the hostile and out- 
rageous misbehavior of Captain Quigley, of the Canadian 
cruiser, Terror," and said, "the firing of a gun across their 
bows was a most unusual and wholly uncalled-for exhibi- 
tion of hostility, and equally so was the placing of armed 
men on board the lawful and peaceful craft of a friendly na- 
tion," although Captain Quigley gave another version of 
his acts. In the case of the " Mollie Adams," whose water- 
tank had been burst by heavy weather, and whose master 
was refused permission by the Collector at Port Mulgrave 
to purchase two or three barrels to hold water on their 
homeward voyage, the vessel was compelled to put to sea 
with an insufficient supply of water, and in trying to make 
another port wherein to obtain it, encountered a gale which 
swept away a deck-load of fish and two seine boats, and 
Mr. Bayard (September 10, 1886) denounced the conduct 
of the custom officer as ■' inhospitable and inhuman." 

Again, September 23, 1886, Mr. Bayard had to complain 
of the treatment of the A. R. Crittenden, whose master 
stopped at Steep Creek for water, and was told by the 
Customs Officer that if he took in water his vessel would be 
seized, whereupon he sailed without the needed supply, and 
was obliged to put his men on a short allowance of water 
during the passage homeward. Mr. Bayard characterized 



f 



14 THE FISHERIES DISPUTE. 



this conduct as " unlawful and inhuman," and as affording 
" an illustration of the very vexatious spirit in which the 
officers of the Dominion of Canada appear to seek and pe- 
nalize and oppress those fishing vessels of the United States, 
lawfully engaged in fishing, which from any cause are 
brought within their reach." 

On November 6, 1886, Mr. Bayard wrote to Mr. Phelps : 

The hospitality of Canadian coasts and harbors, which are ours by 
ancient right, and which these treaties confirm, costs Canada nothing, 
and are productive of advantages to her people. Yet, in defiance of 
the most solemn obligations, in utter disregard of the facilities and 
assistances granted by the United States, and in a way especially irri- 
tating, a deliberate plan of annoyances and aggressions has been insti- 
tuted and plainly exhibited during the last fishing season, a plan cal- 
culated to drive these fishermen from shores where, without injury to 
others, they prosecute their own legitimate and useful industry. 

It is impossible not to see that if the unfriendly and unjust sys- 
tem, of which these cases now presented are a part, is sustained by 
Her Majesty's Government, serious results will almost necessarily 
ensue, great as the desire of this Government is to maintain the re- 
lations of good neighborhood (49th Congress, 2d Session, House of 
Representatives, Ex. Doc. 19, p. 160). 

The question asked by Mr. Bayard of Sir Lionel West 
(May 10, 1886) is still the question before the country : 

Whether such a construction is admissible as would convert the 
Treaty of 1818, from being an instrumentality for the protection of the 
in-shore fisheries along the described parts of the British American 
coasts, into a pretext or means of obstructing the business of deep- 
sea fishing by citizens of the United States, and of the interrupting and 
destroying the commercial intercourse that since the Treaty of 1818, 
and independent of any treaty whatever, has grown up and now ex- 
ists under the concurrent and friendly laws and mercantile regulations 
of the respective countries (42d Congress, 2d Session, House of 
Representatives, Ex. Doc, p. 9). 

The wide and irreconcilable differences between the view 
of American rights under the Treaty of 1818 taken by Mr. 
Bayard, Mr. Phelps, and Mr. Senator Edmunds, represent- 



THE FISHERIES DISPUTE. 15 

ing the Committee on Foreign Relations in the Senate, and 
by Mr. Belmont, representing the like Committee in the 
Mouse, and the, view of our rights under that treaty taken 
by the Canadian authorities, and adopted or acquiesced in 
by the British Government, seem to show the hopelessness 
of coming to an agreement under that treaty. 

The Decided View of Secretary Manning. 

The Secretary of the Treasury, Mr. Manning, in his very 
able response to the Committee on Foreign Affairs in the 
House of Representatives, dated February 6, 1887, on the 
fisheries question, says (p. 4) : 

It is impossible not to recognize how justly my colleague, Mr. 
Bayard, has portrayed the inhumanity and brutality with which cer- 
tain Canadian officials treated defenceless American fishermen during 
the last summer, even those who had gone out of their way to rescue 
Canadian sailors, and having entered a Canadian bay to safely land 
those they had saved, attempted to procure food to sustain their own 
lives. 

Mr. Manning shows that the "restrictions" enforced 
by Canadian statutes and officials against our fishermen, 
under pretence of restricting commercial privileges, are, in 
fact, in violation of our fishing rights and of the Treaty of 
1818, and he tells us of a new Canadian Act, approved by 
the Queen in Council on November 26, 1886, entitled " An 
Act further to amend the Acts respecting fisheries by for- 
eign vessels," and Mr. Manning says : 

The Canadian Act thus having the royal approval was intended, 
as has been openly avowed, to forfeit any American fishing vessel 
which is found having entered Canadian waters, or the port of Halifax, 
to buy ice, bait, or other articles, or for any purpose other than shelter, 
repairs, wood, or water. That we deny, and reply that such legisla- 
tion is a repeal and annulment by England of the arrangement made 
in 1830, and to that repeal we are entitled to respond by a similar re- 
peal of our own law, and by a refusal hereafter, and while debate or 
negotiation goes on, to confer hospitality or any privilege whatever in 
our ports on Canadian vessels or boats of any sort. A violation of 



% 



l6 THE FISHERIES DISPUTE. 



amity may be looked upon as an unfriendly act, but not a cause for 
a just war. England may judge for herself of the nature and extent 
of the amity and courtesy she will show to us. In the present case we 
do not propose retaliation ; we simply respond — we, too, suspend am- 
ity and hospitality. 

The View of the Senate Committee. 

The report of Senator Edmunds on behalf of the Com- 
mittee on Foreign Relations (49th Congress, 2d Session, 
Senate Report, No. 1,683, January 19, 1887), after a careful 
analysis of the treaties and of the British Canadian legisla- 
tion on the fisheries question, including " An Act further to 
amend the Acts respecting fisheries by foreign vessels," ap- 
proved by the Queen in Council, November 26, 1886, com- 
mented on by Secretary Manning, and after remarking : 

From all this it would seem that it is the deliberate purpose of the 
British government to leave it to the individual discretion of each one 
of the numerous subordinate magistrates, fishery officers, and customs 
officers of the Dominion of Canada to seize and bring into port any 
American vessels, whether fishing or other, that he finds within any 
harbor in Canada, or hovering within Canadian waters. The statute 
does not even except that Canadian waters in which a large part of the 
southern coast and the whole of the western coast of Newfoundland 
they are entitled to fish, to say nothing of the vast extent of the con- 
tinental coast of Canada. 

The Committee repeats its expression of the firm opinion that this 
legislation is in violation of the Treaty of iZiZ, as it respects American 
fishins; vessels, and in violation of the principles of amity and good 
neighborhood that ought to exist in respect of commercial intercourse 
or the coming of the vessels of either having any commercial character 
within the waters of the other. Had it been intended to harass and 
embarrass American fishing and other vessels, and to make impracti- 
cable further to enjoy their treaty and other common rights, such legis- 
lation would have been perfectly adapted to that end. 

With this uniformity of agreement on the point that Great 
Britain is deliberately violating the treaty of 1818, and with- 
holding the privileges to our fishermen in consideration of 
which we surrendered our olden rights and liberties in the 



M 



THE FISHERIES DISPUTE. IJ 

Newfoundland fisheries, can we consent with a due regard 
to national fitness to any further delays ? Is there any good 
reason why wc should not notify Great l^ritain that unless 
our rights under the treaty, as we understand them, are at 
once recognized and permanently protected, we propose to 
abrogate the first article of the Treaty of 1818, as for a sim- 
ilar reason — non-performance of contract — we terminated 
in the last century out treaties with France. 

Abrogation of Treaties for Violation of Con- 
tract. 

On July I, 1798, Congress annulled by act the trea- 
ties with France made in 1778, stating among the reasons 
for the act, that these treaties had been repeatedly violated 
on the part of the French Government ; that the just claims 
of the United States for reparation of the injuries so com- 
mitted have been refused, and that there was still pursued 
against the United States a system of prevailing violence 
infracting the said treaties and hostile to the rights of a 
free and independent nation (i U. S. Stat., i., 578 ; Whar- 
ton's International Law Digest, 137 a). 

The act was sustained by the American envoys, Messrs. 
Ellsworth, Davie, and Murray, in a letter to the French en- 
voys, July 23, 1800, on the ground of prior violation by 
France. 

It was remarked that treaties being a mutual compact, a palpa- 
able violation of it by one party did, by the law of nature and of na- 
tions, leave it optional with the other to renounce and declare the same 
to be no longer obligatory ; and that of necessity there being no com- 
mon tribunal to which they could appeal, the remaining party must 
decide whether there had been such violation on the other part as to 
justify renunciation. 

To the further suggestion that the laws of nations ad- 
mitted of a dissolution of treaties only by mutual con- 
sent or war, it was remarked by the American envoys 
that Vattel in particular, tlic best approved of modern 



I8 THE FISHERIES DISPUTE. 

writers, not only held that a treaty violated b)' one party 
might for that reason be renounced by the other, but that 
when there were two treaties between the same parties, 
one might be rendered void in that way, and the other re- 
main in force. 

Mr. Madison wrote to Mr. Edmund Pendleton, January 
2, 1 79 1 (I. Madison's Works, 524) : 

That the contracting power can annul the treaty cannot I pre- 
sume be questioned, the same authority precisely being exercised in 
annulling, as in making a treaty. 

That a breach on one side (even of a single article, each being con- 
sidered as a condition of every other article) discharges the other, is 
as little questionable, but with this reservation that the other side is at 
liberty to take advantage or not of the breach, as dissolving the 
treaty. . . 

It is, of course, desirable that whatever disposition is 
made of the Fisheries Convention of 1818, which has so long 
been a source of trouble, should be made by mutual consent, 
and that with its departure the international differences 
should cease. But if Great Britain, under whatever influence, 
should refuse her assent to this, and if our Government is 
satisfied not only that we are entitled to abrogate the treaty, 
but that the rights of our citizens and the national dignity 
demand its abrogation, a review of historic facts and of the 
law of nations applicable to the Treaty of 1783, and of the 
opinions of learned crown lawyers of Great Britain and of 
distinguished jurists in the United States, all seem to unite in 
showing that the abrogation of the first article of the Treaty 
of 1818 would revive in full force our original rights as de- 
fined in the third article of the Treaty of Peace in 1783. 
The article which would be thus restored is as follows : 

Article III. 

It is agreed that the people of the United States shall continue to 
enjoy unmolested the right to take fish of every kind on the sand bank 
and all the other banks of Newfoundland, also in the Gulf of St. Law- 
rence, and at all other places in the sea, where the inhabitants of both 
countries used at any time heretofore to fish. 



THE FISHERIES DISPUTE. IQ 

And also that the inhabitants of the United States shall have lib- 
erty to take fish of every kind on such part of the coast of Newfound- 
land as British fishermen shall use (but not to dry or cure the same on 
that island), and also on the coasts, bays, and creeks of all other of 
his Britannic Majesty's Dominions in America ; and that the American 
fishermen shall have liberty to dry and cure fish in any of the unsettled 
bays, harbors, and creeks of Nova Scotia, Magdalen Islands, and Lab- 
rador, so long as the same shall remain unsettled ; but so soon as the 
same or either of them shall be settled, it shall not be lawful for the 
said fishermen to dry or cure fish at such settlements without a previ- 
ous agreement for that purpose with the inhabitants, proprietors, or 
possessors of the land. 



The Newfoundland Fisheries in European and 
American History. 

Before passing to the unsuccessful attempt of the 13ritish 
Commissioners at Ghent, at the close of the War of 1812, to 
persuade the American Commissioners that the fisheries 
article had been abrogated by the war, and to their greater 
success in London in 1818, when Messrs. Rush and Gallatin 
voluntarily surrendered our olden rights and consented to 
the conditions under which our fishermen are now so ill- 
treated, it may be well to recall some of the principal in- 
cidents that preceded and attended the Treaty of Peace, 
and which explain the regard shown by the old Congress to 
the value of the fisheries, and the rights of the fishermen : 
and the difficulties which had to be overcome by the Ameri- 
can Commissioners at Paris before they could secure for the 
young republic the rights and liberties guaranteed by Arti- 
cle III., and which by the Treaty of 18 18 were needlessly 
surrendered. 

Senator Edmunds remarked, in the North American Re- 
vieiv, that " no permanent gain for American interests has 
been made since the Treaty of 1783." As regards our fish- 
ermen, were the technical reasoning of our Canadian neigh- 
bors to be accepted as correct, it might be said that Ameri- 
can diplomacy had stripped them of their right to decent 



20 THE FISHERIES DISPUTE. 

and hospitable treatment conferred by the law of God, and 
recognized as. sacred by the law of nations. 

The history of the Newfoundland fisheries, of which an 
interesting sketch is given in the learned report of the late 
Lorenzo Sabine, of Massachusetts, submitted by the Hon, 
Thomas Corwin, Secretary of the Treasury in 1853, throws 
light not only upon the estimate of their importance by the 
American Congress, but by the courts of England, of 
France, and of Spain. 

The Newfoundland fisheries were known to the Bis- 
cayans and Normans in 1504, and in 15 17 fifty ships of dif- 
ferent nations were engaged in them. In i577» the French 
employed one hundred and fifty vessels, and by Henry IV., 
and his great Minister Sully, the Newfoundland cod-fishery 
was placed under the care of the government, and to her 
fisheries France was indebted for her possessions in Amer- 
ica, 

The first difficulties from rival grants of land by France 
and England occurred in Acadia, which embraced the pres- 
ent colonies of Nova Scotia, and New Brunswick and 
Maine, between the Kennebec and the St. Croix Rivers, 
These were limited by the Treaty of St. Germain in 1683, 
by which Charles I., who had married a French princess, 
resigned certain places, whose cession was afterward held 
to be fraudulent by Cromwell, who erected Nova Scotia 
into a colony, and after the restoration of the Stuarts, by 
the Treaty of Breda in 1667, it passed a second time to 
France. A third treaty, that of London in 1686, confirmed 
the two powers in their respective colonies. On the proc- 
lamation of war between England and France on the acces- 
sion of William and Mary, Massachusetts commenced prep- 
arations for the conquest of Nova Scotia and Canada, 
under Sir William Phipps ; and at the peace of Ryswick, in 
1697, Nova Scotia was again returned to the French, who 
promulgated a claim to the sole ownership of the fisheries, 
Villabon, Governor of Nova Scotia, notified the Governor 
of Massachusetts of royal instructions from France to seize 



THE FISHERIES DISPUTE. 21 

every American fisherman who ventured east of the Kenne- 
bec River into Maine, and the historian writes, " On both 
sides the strife was for the monopoly and for the mastery." 

In 1699 came to Boston the Earl of Bellamont. In the 
first year of Queen Anne, the two nations were again at 
war, and among the causes were the claims of France to a 
part of Maine and the whole of the fishing grounds. The 
people of New England engaged heartily in the contest and 
equipped a fleet at Boston ; and after a doubtful struggle 
in 1710 Nova Scotia became an English province, and the 
Home Ministry attempted the conquest of Canada, a 
scheme designed by Bolingbroke and mismanaged by a 
Commander Hill, who, with troops fresh from the victories 
of Marlborough, aided by trained colonists of New England, 
lost by wreck in the passage up the St. Lawrence eight 
ships and more than eight hundred men. 

By the Treaty of Utrecht, in 1713, England obtained the 
supremacy and monopoly of the fisheries of our seas, and 
the Tory statesmen, headed by Oxford and Bolingbroke, safe 
from foreign dangers, quarrelled among themselves. Ox- 
ford was impeached for high treason by the House of Com- 
mons and corrimitted to the Tower, and among the charges 
against him was that Robert Earl of Oxford and Earl Mor- 
timer had in defiance of an act of Parliament advised their 
Sovereign that " the subjects of France should have the 
liberty of fishing and drying fish in Newfoundland." "But 
such," wrote the historian, "has been the advance of civili- 
zation, and of the doctrine of human brotherhood, that an 
act which was a flagrant crime in his own age has become 
one honorable to his memory. The great principle he thus 
maintained in disgrace, that the seas of British America are 
not to be held by British subjects as a monopl)', and to the 
exclusion of all other people, has never since been wholh' 
disregarded by any British Minister, and we may hope will 
even now appear in British diplomacy to mark the progress 
of liberal principles and of man's humanity to man." 

The French, undismayed by the loss of Nova Scotia, 



22 THE FISHERIES DISPUTE. 

settled and fortified Cape Breton, and in 1721 their fleet of 
fishing vessels was larger than ever and said to be quite 
four hundred. 

In 1745 England and France were again at war, and the 
conquest of Cape Breton was undertaken, and Louisbourg, 
named in honor of the King, was the point of attack — 
" twenty-five years and thirty million of livres had been re- 
quired to complete it, and more than two hundred cannon 
were mounted to defend it. So great was its strength 
that it was called ' The Dunkirk of America.' It had nun- 
neries and palaces, terraces and gardens. That such a city 
rose upon a lone desolate isle in the infancy of American 
colonization appears incredible ; explanation is alone found 
in the fishing enthusiasm of the period." The fleet sailed 
from Boston in March. The colonial ships and the royal 
squadron, supported by the colonists on shore, maintained 
the siege with surprising energy. Nine thousand cannon- 
balls and six hundred bombs were discharged by the assail- 
ants, fifteen hundred of whom, badly sheltered and exposed 
to cold and fog, became unfit for duty, and yet on the forty- 
ninth day of the investment the French commander surren- 
dered, and Pepperell, by keeping the French flag flying, 
lured within their grasp ships with cargoes of great value. 
Thirty years later the capture was pronounced in the House 
of Commons " an everlasting memorial to the zeal, courage, 
and perseverance of the troops of New England." 

" With the present condition of Cape Breton in view," 
remarks Mr. Sabine, " we almost imagine that we hold in 
our hands books of fiction rather than the records of the real, 
when we read as we do in Smollett that the conquest of 
Louisbourg was ' the most important achievement of the 
war of 1744,' and in the Universal History that ' New Eng- 
land gave peace to Europe by raising an army and trans- 
porting four thousand men, whose success proved an equiva- 
lent for all the successes of France on the Continent.' " 

By the peace of Aix-la-Chapelle in 1748, which has been 
pronounced dishonorable to England at home and in her 



THE FISHERIES DISPUTE. 23 

colonies, Cape Breton was restored to France, and among 
the results of that peace was counted the alienation of the 
affection of the people of New England, who felt that the 
House of Hanover, like the Stuarts, were ready to sacrifice 
their victories and their interests as " equivalents" for de- 
feats and disasters in Europe. 

In 1756 came another war between Great Britain and 
France, and two years later the second siege ofLouisbourg 
by twenty ships of the line, eighteen frigates, a fleet of smaller 
vessels, and an army of fourteen thousand men. The suc- 
cess of this expedition, in which Wolfe commanded a corps, 
caused great rejoicings in England, and the French colours 
were deposited at St. Paul's. In this last war Americans 
bore a distinguished part, and it was said in the House of 
Commons that of the seamen employed in the British navy 
ten thousand were natives of America. Among the promi- 
nent actors were many who became prominent in our revo- 
lution. With Pepperell at Louisbourg were Thornton, a 
signer of the Declaration of Independence; Bradford, 
Gridley, who laid out the works on Bunker Hill ; and on the 
frontiers of Virginia and in the West was Washington. En- 
gaged in one or other of the French Wars were Sears, Wol- 
cott, Williams, and Livingston, all among the signers ; Pres- 
cott, Montgomery, Gates, Mercer, Morgan, Thomas, James 
Clinton (the father of DeWitt Clinton), Stark, Spencer, the 
Putnams, Nixon, St. Clair, Gibson, Bull, Durke, Butler, 
Campbell, and Chief Justice Dyer of Connecticut. It was, 
says Sabine, in Nova Scotia and Canada and Ohio, at Port 
Royal, Causeam, Louisbourg, Quebec, and in the wilds of 
Virginia, that our fathers acquired the skill and experience 
necessary for the successful assertion of our rights. 

By the Treaty of Paris in 1763, when Canada and its 
dependencies were formally ceded to Great Britain, France 
received the right of fishing and drying on the coast of 
Newfoundland, as provided by the Treaty of Utrecht, but 
at a distance of fifteen leagues from Cape Breton— a con- 
cession which was viewed with great displeasure in England. 



24 THE FISHERIES DISPUTE. 

where it was said that " the fisheries were worth more than 
all Canada." 

When in 1778 a treaty of commerce was made between 
the United States and France, it was provided by articles 
IX. and X. that neither party should interfere with the 
fishing rights enjoyed by the other, a provision which seems 
to have been forgotten by France when, in April, i779j she 
secretly agreed with Spain that if she could drive the British 
from Newfoundland the fisheries should be shared only with 
Spain. 

The Old Congress on the Fisheries. 

The historic and memorable part born by the American 
colonists in securing for Great Britain the Newfoundland 
fisheries, added to their importance to the colonies them- 
selves, naturally led to a just appreciation of their value. 

On October 22, 1778, Congress adopted a plan which is 
referred to in the instructions given to Franklin " for re- 
ducing the Province of Canada," and the first reason given 
for declaring the reduction of Halifax and Quebec objects 
of the highest importance, was that "the fishery of New- 
foundland is justly considered as the basis of a good Ma- 
rine " (II. Secret Journal of Congress, 114). On May 27, 
1779, it was recorded, on motion of Mr. Burke, seconded by 
Mr. Douglas, " that in no case by any Treaty of Peace the 
common right of fishing be given up ; " and on June 24, 1779, 
they voted, " that it is essential to the welfare of all the 
United States that the inhabitants thereof, at the expiration 
of the war, should continue to enjoy the free and undis- 
turbed exercise of their common right to fish on the banks 
of Newfoundland and the other fishing banks and seas of 
North America" (Do., p. 184). 

The earnestness of Congress in this view appears from 
a further resolution, July ist, for an explanatory note to the 
Minister at the Court of Versailles, whereby such common 
right shall be more explicitly guaranteed. On July 17th, 
I779> touching the treaty with England, and on July 29, in 



THE FISHERIES DISPUTE. 25 

a resolution of which the spirit will be approved by our 
harried fishermen of to-day, on motion of Mr. McKean, sec- 
onded by Mr. Huntington, it was resolved, that if after a 
treaty of peace with Great Britain she shall molest the citi- 
zens or inhabitants of any of the United States in taking 
fish on the banks and places described in the resolutions 
passed on the 22d day of July instant, such molestation 
(being in the opinion of Congress a direct violation and 
breach of the peace) shall be a common cause of the said 
States, and the force of the Union be exerted to obtain re- 
dress for the parties injured. 

Elaborate reports on the common right of the States to 
the fisheries, on January 8, and August i6, 1782 (III. 
Secret Journal of Congress, pp. 151, 161), show how thor- 
oughly the subject had been studied. 

As regards its instructions Congress, under the influence 
of M. Gerard and M. de la Luzerne, the French Ministers at 
Philadelphia, took a lower tone when, on June 15, 1781, 
it gave to its peace commissioners the humiliating and in- 
credible instruction, which Madison denounced as " a sac- 
rifice of the national dignity," to undertake nothing in the 
negotiations for peace or truce without the knowledge and 
concurrence of the Ministers of the King of France, " and 
ultimately to govern yourselves by their advice and opin- 
ion " (X. Diplomatic Correspondence, 75, ']G). 

While no satisfactory explanation has been given for 
the adoption by Congress of this instruction, the reasons 
for its being urged by the Court of France have been re- 
cently made quite clear by the valuable confidential cor- 
respondence of the Count de Vergennes with his agents at 
Madrid, Philadelphia, and London, published in part by 
the Count de Circourt, and more largely comprised in the 
invaluable collection of papers relating to the peace negoti- 
ations made by Mr, B. F. Stevens, and now awaiting in 
the State Department at Washington the action of the 
Government. 

M. de Circourt's third volume and the recent " Life of 



26 THE FISHERIES DISPUTE. 

Lord Shelburne," by his grandson Lord Edmond Fitzmaurice, 
a brother of Lord Lansdowne, the Governor-General of 
Canada, both pubhshed in 1876, the first at Paris and the 
second in London, show precisely the position occupied by 
each of these three powers, Great Britain, France, and 
Spain, in opposition to the American claims to the fisheries. 

The Opposition of England, France, and Spain. 

England's hostile position on the fisheries was defined by 
the announcement of the Shelburne Ministry to Mr. Oswald, 
that " the limit of Canada would, under no circumstances, be 
made narrower than under the Parliament of 1763, and that 
the right of drying fish on the shores of Newfoundland could 
not be conceded to the American fisherman " (IIL " Life of 
Shelburne," p. 255). 

When France, by the Treaty of Madrid, April 12, I779» 
induced Spain to join in the war against Great Britain, the 
reluctance of Spain to assist in the independence of revolted 
colonies, whose power and influence she hated and feared, 
was overcome by an agreement on the part of France, 
with small regard to the interests of the United States or to 
her treaty obligations with the Republic, first, that if the 
British should be driven from Newfoundland its fisher- 
ies were to be shared only with Spain ; and second, that 
Spain should be left free to exact, as the price of her alliance 
in the war, a renunciation of every part of the basin of the 
St. Lawrence and the lakes, and the navigation of the Mis- 
sissippi, and of all the land between that river and the Alle- 
ghanies (X. Bancroft, 190, quoting authorities). 

In pursuance of that agreement, and with a view to 
facilitate the designs of Spain against America to which 
France had assented, M. de Vergennes gave repeated and 
elaborate instructions to his diplomatic agents in America. 
The very ingenious argument of his Excellency against our 
right to the fisheries is interesting from its complete con- 
trast to the view held by our own Commissioners, and which. 



THE FISHERIES DISPUTE. 2"] 

as the treaty shows, was, in that solemn instrument, recog- 
nized and adopted by the British Government. He said in 
a letter to M. de la Luzerne, the French Minister at Phila- 
delphia, dated Versailles, September 25, 1777 : 

It is essential to remark that the fisheries belong, and have always 
belonged, to the Crown of Great Britain, and that it was as subjects of 
the Crown the Americans enjoyed them — consequently, from the mo- 
ment wlien they shook off the English yoke and declared themselves 
independent, they broke the community which existed between them 
and the metropolis ; and voluntarily relinquished all the advantages 
which they derived from that community, just as they despoiled Eng- 
land of all the advantages she derived from their union with her. 

This is virtually the same argument held by Lord 
Bathurst in his correspondence with Mr. John Quincy 
Adams, and by the English Commissioners at Ghent, that 
" when the Americans by their separation from Great 
Britain became released from the duties, they became ex- 
cluded also from tlie privileges of British subjects." 

It should therefore, argued the Count de Vergcnnes, be well estab- 
lished that from the moment when the colonies published their Dec- 
laration of Independence they have ceased to own a share in the 
fisheries, because they have forfeited by their own act the qualifica- 
tion which entitled them to such a share ; that consequently they can 
offer to the court of London neither title nor actual possession, from 
this comes another result, viz., that the Americans having no right to 
the fishing we can give them no guarantee on that head (III. de Cir- 
court, pp. 276, 277). 

This argument conveniently accords with the suggestion 
which closes the remarkable memoir on the principal ob- 
ject of negotiation for peace given by M. de Circourt (IIL, 
pp. 29, 38) from the French archives, that it would be for 
the interest of England to have the French as companions 
at Newfoundland rather than the Americans, and agrees 
with the strong opinion presented to Lords Shelburne and 
Grantham by M. Reyneval, during his secret visit to Eng- 



28 THE FISHERIES DISPUTE 

land in September, 1782, against our right to the fisheries 
(III. Shelburne's Life, p. 263). 

There would have been more force in the Count's argu- 
ment had he succeeded in his attempt to induce the American 
Commissioners to negotiate under the first commission to 
Mr. Oswald, authorizing him to treat with representatives 
of " the Thirteen Colonies or plantations." The Count then 
argued against an acknowledgment of our independence in 
advance of the treaty which would concede it, on the 
ground that " it would not be reasonable to expect the ef- 
fect before the cause," and he told the English Minister 
Fitzherbert that the commission would do. Had the 
American Commissioners adopted that advice and con- 
sented to treat under that designation, their consent might 
have given color to his suggestion, that any grant by Great 
Britain to her colonies in revolt, of the fisheries or the 
boundaries, had been given and accepted as a concession. 

The Count's advice, though concurred in by Dr. Frank- 
lin, struck Jay as singular, and the refusal of Jay to treat 
except on an equal footing stayed for some six weeks the 
progress of the negotiations for a general peace, until the 
mission of Vaughan, and the considerations of which he 
was the bearer, convinced the British Cabinet and brought 
the new Commission to Oswald, to treat with " The United 
States of America " (Jay to Secretary Livingston, No- 
vember 17, 1782, VIIL Diplom. Corresp., pp. 135, 141, 
200). Then the negotiations commenced between the two 
independent and equal powers, and this fact enabled John 
Adams to say, nearly forty years afterward — in a letter to 
William Thomas, dated August 10, 1822, in a pithy expres- 
sion which contains a world of thought and of argument, 
and which should be borne in mind by the statesmen of both 
countries in considering the fishery question : " We con- 
sidered that treaty as A DIVISION OF THE EMPIRE. Our 
independence, our rights to territory and to the fisheries as 
practised before the Revolution, were no more a grant from 
Britain to us than the treaty was a grant from us of Canada, 



THE FISHERIES DISPUTE. 29 

Nova Scotia, England, Scotland, and Ireland to the Britons. 
The treaty was nothing more than mutual acknowledg- 
ment of antecedent rights" (August 10, 1882, X. Adams' 
Works, 404). 

It was fitly called by an English judge " A Treaty of 
Separation." 

The Fisheries Clause a Condition of the Peace. 

VaiigJian's Mission to Slielburne. 

The sketches afforded by the official correspondence of 
our Commissioners for Peace, and by the diary of Mr. Ad- 
ams, and the new and most important light thrown upon 
the whole subject by the confidential documents from the 
French Archives, and by the interesting disclosures in the 
Life of Lord Shelburne all confirm this view. 

To the latter work we are indebted for the most exact 
information we have yet had of the attempt of M. de Ray- 
neval in his secret mission to engage the support of Great 
Britain to the French and Spanish scheme, in which those 
courts united at the date of their treaty, April, 1779, to de- 
prive the United States of the fisheries, and so to cripple 
her boundaries and resources as to confine her to a narrow 
strip along the Atlantic, as shown in the map " of North 
America, showing the Boundaries of the United States, 
Canada, and the Spanish Possessions, according to the pro- 
posals of the Court of P'^rance, in 1882" (III. Shelburne's 
Life, p. 170). Their limits, according to the secret memoir 
given by de Circourt (III., pp. 34, 38), were to be detailed 
and " circumscribed with the greatest exactness, and all the 
belligerent powers (especially England, France, and Spain) 
must bind themselves to prevent any transgression of them." 

To Lord Edmond Fitzmaurice, the grandson and biog- 
rapher of Lord Shelburne, we are also indebted for the first 
account of the full effect of the secret mission of Mr. Ben- 
jamin Vaughan, who had been promptly despatched by Jay 
to counteract the unfriendly designs of the French envoy, 



30 THE FISHERIES DISPUTE. 

and apart from its general interest as showing the complete 
success of Vaughan's mission in deciding the policy of the 
British cabinet in favor of the United States, and in over- 
throwing at a blow the scheme for the permanent enfeeble- 
ment of the new Republic, in which France and Spain had 
been for years united, and to accomplish'which their ablest 
diplomatists were engaged in Madrid and Paris, at Phila- 
delphia and London, it has a direct bearing on the fisheries 
question of to-day, in showing that the British cabinet then 
adopted their new policy of conciliation with a complete 
advisement that without a recognition of our right to the 
fisheries no peace was possible. The " Considerations " sub- 
mitted by Mr.Vaughan to Lord Shelburne (VIIL Diplomatic 
Correspondence, pp. 165, 168) as worthy of attention if 
England expected other advantages from peace than a mere 
suspension of hostilities, if she looked forward to cordiality, 
confidence, and commerce, after touching upon the impor- 
tance of treating with us on an equal footing, notwithstand- 
ing the policy of France to postpone the acknowledgment 
of our independence to the conclusion of a general peace, 
discussed with perfect frankness the true policy of Great 
Britain as regards the fisheries and the boundaries, and said 
in conclusion, " that it certainly could not be wise in Britain, 
whatever it might be in other nations, thus to sow the seeds 
of future war in the very treaty of peace, or to lay in it the 
foundation of such distrust and jealousies as on the one 
hand would forever prevent confidence and real friendship, 
and on the other naturally lead us to strengthen our security 
by intimate and permanent alliances with other nations." 

In regard to the fisheries the " Considerations '' said 
"that it would not be wise in Great Britain to think of 
dividing the fishery with France and excluding us, because 
we could not make peace at such an expense, and because 
such an attempt would irritate America still more ; would 
perpetuate her resentment, and induce her to use every 
possible means of retaliation, and by imposing the most 
rigid restraints upon a commerce with Great Britain." 



THE FISHERIES DISPUTE. 3 1 

The effect of Vaughan's arrival with these considerations 
" almost simultaneously with Rayneval " was decisive. The 
Cabinet at once decided to accept the American proposition 
as to the commission of Oswaldj and to adopt the American 
policy as opposed to that of France and Spain. The new 
commission was made out at once and despatched by 
Vaughan, and Lord Shelburnc wrote to Oswald, September 
23, 1782 — " Having said and done everything which has 
been desired, there is nothing for me to trouble you with, 
except to add that we have put the greatest confidence, I 
believe, ever placed in man in the American Commission- 
ers " (III. Shelburne, pp. 267, 268). 

The Negotiation at Paris. — Mr. Adams' Diary. 

An extract from Mr. Adams' diary, showing what was 
said and agreed to on both sides about the fisheries the day 
before the signing of the Provisional Articles, November 
29, 1782, throws light upon the intention of both parties, 
and conclusively answers the attempt of the British Com- 
missioners, at Ghent and London, to show that the Fisheries 
Article had been annulled by the War of 1812 : 

29th, Friday. — Met Mr. Fitzhcrbert, Mr. Oswald, Mr. Franklin, 
Mr. Jay, Mr. Laurens, and Mr. Strachey, at Mr. Jay's, Hotel d' Orleans, 
and spent the whole day in discussion about the fisheries and the 
Tories. I proposed a new article concerning the fishery. It was dis- 
cussed and turned in every light, and multitudes of amendments pro- 
posed on each side ; and at last the article drawn as it was finally 
agreed to. 

The other English gentlemen being withdrawn on some occasion, 
I asked Mr. Oswald if he could consent to leave out the limitation of 
three leagues from all their shores and the fifteen from those of 
Louisburg. He said in his own opinion he was for it ; but his instruc- 
tions were such that he could not do it. I perceived by this and by 
several incidents and little circumstances before, which I had re- 
marked to my colleagues, who are much of the same opinion, that Mr. 
Oswald had an instruction not to settle the articles of the fisheries and 
refugees without the concurrence of Mr. Fitzhcrbert and Mr. Strachey. 



32 THE FISHERIES DISPUTE. 

Upon the return of the other gentlemen, Mr. Strachey proposed to 
leave out the word " right" of fishing and make it '' liberty." Mr. 
Fitzherbert said that the word right was an obnoxious expression. 
Upon this I rose up and said : " Gentlemen, is there or can there be a 
clearer right ? In former treaties — that of Utrecht and that of Paris 
— France and England have claimed the right and used the word. 
When God Almighty made the banks of Newfoundland, at three hun- 
dred leagues distance from the people of America, and at six hundred 
leagues distance from those of France and England, did He not give as 
good a right to the former as to the latter ? If Heaven, as the Creator, 
gave a right, it is ours at least as much as yours. If occupation and 
possession give a right, we have it as clearly as you. If war and 
blood and treasure give a right, ours is as good as yours. We have 
been continuously fighting in Canada, Cape Breton, and Nova Scotia 
for the defence of this fishery, and have expended beyond all propor- 
tion more than you ; if the right cannot then be denied, why should 
it not be acknowledged and put out of dispute. Why should we leave 
room for illiterate fishermen to wrangle and chicane ? " Mr. Fitzherbert 
said : " The argument is in your favor. I must confess your reasons 
appear to be good, but Mr. Oswald's instructions were such that he did 
not see how he could agree with us. . . ." After hearing all this, 
Mr. Fitzherbert, Mr. Oswald, and Mr. Strachey retired for some time ; 
and returning, Mr. Fitzherbert said that, upon consulting together and 
weighing everything as maturely as possible, Mr. Strachey and himself 
had determined to advise Mr. Oswald to strike with us according to 
the terms we had proposed as our ultimatum respecting the fishery 
and the loyalists. Accordingly, we all sat down and read over the 
whole treaty and corrected it, and agreed to meet to-morrow at Mr. 
Oswald's house to sign and seal the treaties, which the secretaries 
would copy fair in the meantime. 

I forgot to mention that when we were upon the fishery, and Mr. 
Strachey and Mr. Fitzherbert were urging us to leave out the word 
"right" and substitute " liberty," I told them at last, in answer to 
their proposal, to agree upon all other articles and leave that of the 
fishery to be adjusted at the definitive treaty. I never could put my 
hands to any article without satisfaction about the fishery ; that Con- 
gress had, three or four years ago, when they did me the honor to give 
me a commission to make a Treaty of Commerce with Great Britain, 
given me a positive instruction not to make any such treaty without 
an article in the Treaty of Peace acknowledging a right to the fishery ; 
that I was happy that Mr. Laurens was now present, who, I believe, 
was in Congress at the time and must remember it. Mr. Laurens upon 
this said, with great firmness, that he was in the same case, and could 



THE FISHERIES DISPUTE. 33 

never give his voice for any articles without this. Mr. Jay spoke iii) 
and said it could not be a peace, it would be only an insidious truce 
without it (III. John Adams' Works, 333, 335). 

To this may be properly added an explanatory state- 
ment by Mr. Adams in regard to the subsequent substitu- 
tion of the word liberty for right in parts of the article. 
He wrote to Mr. Thomas : 

That third article was demanded as an ulfiiiialiiin, and it was de- 
clared that no Treaty of Peace should ever be made without it ; and 
when the British Ministers found that peace could not be made with- 
out that Article, they consented ; for Britain wanted peace, if possible, 
more than we did. 

We demanded it as a right, and we demanded an explicit acknowl- 
edgment of that as an indispensable condition of peace ; and the 
word right was in the article as agreed to by the British Ministers, but 
they afterward requested that the word liberty might be substituted 
instead of right. They said it amounted to the same thing, for liberty 
was right, and privilege was right, but the word rigJtt might be more 
unpleasant to the people of England than liberty; and wc did not think 
it necessary to contend for a word (X. Adams' Works, 404). 

The American Commissioners, while yielding to the re- 
quest of the British Commissioners, may have thought that 
while the word liberty in the context was equivalent to 
right , there was a certain fitness in the proposed substitu- 
tion, on the ground that while rigJit was used in reference 
to the sea fishery, the word liberty might seem more ap- 
plicable to the fisheries on the coast retained y Britain. 
This idea was conveyed by Mr. John Ouincy Adams, when 
he said : 

At the same moment and by the same act with which the United 
States acknowledges those coasts and shores as being under a foreign 
jurisdiction. Great Britain recognized the liberty of the people of the 
United States to use them for purposes connected with the fisheries. 

Jolin Adams' statement and argument on this point is 
confirmed by the fact that the right of fisher)-, as discussed 
in Congress and demanded by the American Commissioners 
3 



34 THE FISHERIES DISPUTE. 

as a condition of peace, was not simply the right of taking 
fish on the banks of Newfoundland, the Gulf of St. Law- 
rence, and other places in the sea, but the full fishery right, 
liberty, or privilege — by whatever name it might be called — 
given by the article, and essential to make their olden en- 
joyment of the fisheries continuous and complete. 

The Stevens' collection of papers bearing on the Peace 
Negotiations, from the Archives of France and the State 
Paper Ofifice of London, which, by the courtesy of Mr. 
Stevens and Mr. Dwight, I had the opportunity of partially 
examining at the State Department, contains letters from 
the English Commissioners which fully confirm Mr. 
Adams' statement that the entire article was a condition of 
peace ; and they show that the English Commissioners were 
doubtful of the extent of their instructions, and were not 
quite sure how the treaty, which in fact brought about the 
downfall of the ministry, would be received in England. 

Mr. Strachey to Mr. Thomas Townsend, Paris, Novem- 
ber 20th. Eleven at night. " The article of the fishery has 
been particularly difficult to settle as we thought the in- 
structions were rather limited. It is, however, beyond a 
doubt that tliere coitld have been no treaty at all if we had 
not aaopted the article as it now stands." 

Mr. Oswald to Mr. Thomas Townsend, Paris, Novem- 
ber 30, 1782. " If we had not given way in the article of 
the fishery we should have had no treaty at all, Mr. Adams 
having declared that he would never put his hand to any 
treaty if the restraints regarding the three leagues and fif- 
teen leagues were not dispensed with, as well as that deny- 
ing his countrymen the privilege of drying fish on the un- 
settled parts of Newfoundland." 

As the Americans made the entire article a condition of 
peace, and the English Commissioners assented to it with 
that understanding, the conclusion seems reasonable, if not 
irresistible, that as the article was treated as one by them, 
it should have been treated as one by all who had to do 
with it, as determining the relative rights and privileges of 



THE FISHERIES DISPUTE. 35 

tlie two powers in tlie fisheries, in a division of sovereignty 
which was intended to be not transient but permanent. 

The essential facts of the negotiation on this point men- 
tioned by Mr. Adams, and their striking confirmation by 
the letters of Mr. Strachey and Mr. Oswald, in the collection 
of Mr. Stevens, were probably unknown to the commission- 
ers at Ghent ; and it is interesting to see how complete an 
answer they furnish to the very ingenious and plausible ar- 
guments of Lord Bathurst in his correspondence with Mr. 
John Ouincy Adams (October 30, 181 5) — arguments that 
were repeated three years later by the English Commis- 
sioners at London (Dana's Wheaton). 

The rights acknowledged by the Treaty of 1783 were not only dis- 
tinguishable from fhe liberties conceded by the same Treaty in the 
foundation on which they stand, but they are carefully distinguished in 
the wording of the Treaty. 

. . . In the Third Article Great Britain acknowledged the right 
of the United States to take fish on the banks of Newfoundland and 
other places from which Great Britain had no right to exclude any in- 
dividual nation, but they were to have the liberty to cure and dry them 
in certain unsettled places within the British territory. If the liber- 
ties thus granted were to be as perpetual and indefinite as the right 
previously recognized, it was difficult to conceive a variation of language 
so adapted to produce a different impression, and above all, that they 
should have admitted so strange a restriction of a perpetual and in- 
definite right as those with which the Article concluded, which left a 
right so practical and so beneficial as this was admitted to be, depend- 
ent on the will of British subjects, proprietors, or possessors of the soil 
to prohibit its exercise altogether. 

It was therefore surely obvious that the word right was, through- 
out the Treaty, used as applicable to what the United States were to 
enjoy in virtue of a recognized independence ; and the word liberty to 
what they were to enjoy as concessions strictly dependent on the Treaty 
itself (quoted in Dana's Wheaton, sec. 272). 

The point insisted on by Lord Bathurst, that the right of 
the United States, acknowledged by England, to take fish 
on the Banks and other places from which Great Britain 
could not exclude any nation, shov-s that that clause was 
not the gist or essence of the Third Article, which the 



36 THE FISHERIES DISPUTE. 

Americans demanded as the condition of peace, for con- 
senting to which the EngHsh Commissioners justified them- 
selves by the declaration that there could be no treaty with- 
out it. The change of the word right to liberty, at the 
urgent request of the English Commissioners, doubtful of 
their authority and fearful as to the result, on the ground 
that liberty was right, and that the change was therefore 
immaterial, but that the word liberty might be less unpleas- 
ant to the people of England, can be easily understood 
when we read their letters. The American Commissioners 
had neither doubt nor fear in regard to their share in the 
treaty. They knew that they had successfully maintained 
the rights, the boundaries, and the resources of the Repub- 
lic against the most astute diplomatists of Europe, and had 
laid the foundation of a lasting peace which, as Hamilton 
wrote, surpassed, in the excellence of its terms, the expecta- 
tions of the most sanguine, 

'• A few hours ago," wrote Oswald to Shelburne (No- 
vember 29, 1782), " we thought it impossible that any treaty 
could be made." "If," wrote Strachey to Nepean, "this 
is not as good a peace as was expected, I am confident it is 
the best that could have been made. Now, are we to be 
hanged or applauded for thus rescuing England from the 
American war ? " (III. Shelburne's Life, by Lord Edmund 
Fitzmaurice, pp. 302, 303). 

That the English Commissioners at Paris, Mr. Oswald, 
Mr. Strachey, and Mr. Fitzherbert, afterward Lord St. 
Helens, to whose great ability and distinguished services in 
the negotiation the State-paper Office affords ample tributes, 
were entirely correct in contending that the word liberty 
might be substituted for right, for the reason that it would 
amount to the same thing, was significantly shown in the 
Parliamentary debates on the Treaty by the ablest publi- 
cists of England, and it is interesting to mark the argument 
that, what we had enjoyed only as a privilege as Colonists, 
had become an unlimited right by the Treaty. 



THE FISHERIES DISPUTE. 37 

In the Mouse of Lords, Lord Loughboro said : 

The fishery on the shores retained by Britain is in the next Article 
not ceded, but recognized as A right inherent in the Americans, 
which, though no longer British subjects, they are to continue to enjoy 
unmolested. 

Here the liberty of fishing which Lord Bathurst and 
Lord Gambier sought to show was a Hberty conceded, not 
a right acknowledged, was pronounced by the Great Chan- 
cellor to be '' tiot ceded, but recognized as a right in- 
herent in the Americans," and to be enjoyed by them un- 
molested. 

The Treaty of Ghent. 

No change in the matter of the fisheries was made by 
the Treaty of Ghent, which was signed on December 24, 
1 8 14, b)' Lord Gambier, Henry Goulburne, and Dr. Will- 
iam Adams, on the part of Great Britain ; and by John 
Ouincy Adams, J. A. Bayard, Jonathan Russell, and Albert 
Gallatin, on the part of the United States. 

Mr. Gallatin wrote to the Secretary of State, with the 
Treaty : "If according to the construction of the Treaty of. 
1783, which we assumed, the right was not abrogated by the 
war, it remains entire, since we most explicitly refused to 
renounce it either directly or indirectly." Mr. Adams said 
of the English Commissioners : " Their efforts to obtain our 
acquiescence in their pretensions that the fishing liberties 
had been forfeited by the war were unwearied. They pre- 
sented it to us in every form that ingenuity could desire. It 
was the first stumbling-block and the last obstacle to the 
conclusion of the Treaty" (quoted in Sabine's Report on 
the Principal Fisheries of the American Seas, p. 161. 
Washington, 1853). 

The British government revived the pretence after the 
conclusion of the Treaty, and the Canadian government 
presently began to warn and harass our fishermen, and 
some fishing-vessels were captured. 



38 THE FISHERIES DISPUTE. 

On March 3, 1815, John Adams wrote a letter of shigu- 
lar vigor to WilUam Cranch from Ouincy. He says : 

Our fisheries have not been abandoned. They cannot be aban- 
doned. They shall not be abandoned. We hold them by no grant, 
gift, bargain, sale, or last will and testament, nor by hereditary descent 
from Great Britain. We hold them in truth not as kings and priests 
claim their rights and power, by hypocrisy and craft, but from God 
and our own swords. . . . We have all the rights and liberties of 
Englishmen in the fisheries in as full and ample a manner as we had 
before the Revolution ; we have never forfeited, surrendered, alienated 
or lost any one punctilio of those rights and liberties ; on the contrary, 
we compelled the British nation to acknowledge them in the most sol- 
emn manner in the Treaty of Peace of 1783. 

Mr. Adams then insisted with his sturdy common- 
sense that we had a stronger, clearer, and more perfect 
right than the Britons or any other nation of Europe or 
on the globe, for they were all indebted to us and our 
ancestors for all these fisheries. " We discovered them, we 
explored them, we discovered and settled the countries 
round about them at our own expense, labor, risk, and in- 
dustry, without assistance from Britain. We have pos- 
sessed, occupied, exercised and practised them from the 
beginning. 

" If conquest can confer any right, our right is at least 
equal and common with Englishmen in any part of the 
world. Indeed, it is incomparably superior, for we con- 
quered all the countries about the fisheries ; we conquered 
Cape Breton, Nova Scotia, and dispossessed the French, 
both hostile and neutral." 

In conclusion, Mr. Adams declared that the article in the 
Treaty of 1783 was still in force, and added, " I say it is an 
acknowledgment not only of an antecedent right, it is of 
eternal obligation." (X. Adams' Works, 131-133). 

According to Mr. Rush the difference of opinion in re- 
gard to the fisheries had in 1818 risen to a considerable 
height, and the United States wholly dissented from the 
doctrine advanced by the British Commissioners, that the 



THE FISHERIES DISPUTE. 39 

Treaty of 1783, not being re-ciiactecl or confirmed by the 
Treaty of Ghent, was annulled by the War of 18 12. They 
insisted that the treaty, after a seven years' contest, made 
two empires out of one ; that the entire instrument implied 
permanence — the use of the word rigJit in one place and 
liberty in another could make no difference ; that a right 
of unlimited duration secured by so solemn a deed was as 
much a right as if stipulated by any other term. Liberty 
might have seemed a more appropriate term where an en- 
joyment was guaranteed to one party of a tJiuig adjoining 
territory allotted to the other, but it took nothing from the 
permanency of the allotment. In point of principle the 
United States was pre-eminently entitled to all the fisheries, 
and the restriction at the close of the article stamped per- 
manence upon it. The Treaty of 1783 was altogether 
unlike common treaties. It contemplated a permanent di- 
vision of coequal rights, not a transient grant of mere priv- 
ileges ; the acknowledgment of independence, the estab- 
lishment of boundaries, and the guarantee of the fisheries 
each rested upon the same illimitable basis. According 
to Mr. Rush neither side yielded its conviction to the rea- 
soning of the other, and this being exhausted, there was no 
resource left with nations disposed to peace but a compro- 
mise, and the result was the first article of the Treaty of 
18 1 8, under which have arisen the troubles which we have 
made such fruitless efforts to escape. 



The Fisheries Convention of i8i8. 

Whereas, Differences have arisen respecting the liberty claimed 
by the United States for the inhabitants thereof to take, dry, and cure 
fish on certain coasts, bays, harbors, and creeks of His Britannic Maj- 
esty's dominions in America, it is agreed between the high contracting 
parties that 

" Article I.— The inhabitants of the United States shall have 
forever, in common with the subjects of His Britannic Majesty, the 
liberty to take fish of every kind on that part of the southern coast of 
Newfoundland which extends from Cape Ray to the Rameau Islands, 



40 THE FISHERIES DISPUTE. 

on the western and southern coasts of Newfoundland from the said 
Cape Ray to the Ouisson Islands, on the shores of the Magdalen Isl- 
ands, and also on the coasts, bays, harbors, and creeks from Mount 
Joly on the southern coast of Labrador, to and through the straits of 
Belle Isle, and thence northwardly indefinitely along the coast, without 
prejudice, however, to any of the exclusive rights of the Hudson Bay 
Company ; and that the American fishermen shall have liberty forever 
to dry and cure fish in any of the unsettled bays, harbors, and creeks 
of the southern part of the coast of Newfoundland, above described, 
and of the coast of Labrador ; but so soon as the same, or any portion 
thereof, shall be settled, it shall not be lawful for the said fishermen 
to dry or cure fish at such portion so settled without previous agree- 
ment for such purpose with the inhabitants, proprietors, or possessors 
of the ground. And the United States hereby renounce forever any 
liberty heretofore enjoyed or claimed by the inhabitants thereof to 
take, dry, or cure fish on or within three marine miles of any of the 
coasts, bays, creeks, or harbors of His Britannic Majesty's dominions 
in America not included within the above-mentioned limits : PRO- 
VIDED, HOWEVER, that the American fishermen shall be admitted to 
enter such bays or harbors for the purpose of shelter and of repairing 
damages therein, of purchasing wood, and of obtaining water, and for 
no other purpose whatever. But they shall be under such restrictions 
as may be necessary to prevent their taking, drying, or curing fish 
therein, or in any other manner whatever abusing the privileges hereby 
reserved to them." 

The complications and misunderstandings that arose 
under this convention threatened the peace of the two na- 
tions, and by the Treaty of 1854, made by Mr. Marcy and 
Lord Elgin, the first article of which recited that the liberty 
it granted was "in addition to the liberty secured to the 
United States fishermen by the convention of October 20, 
1 818," we temporarily recovered the enjoyment of some of 
our ancient rights recognized and continued by the Treaty 
of 1783 ; the consideration given on our part being a reci- 
procity of fishing liberty, and of trade in certain articles 
supposed to be greatly to the benefit of Canada. This 
treaty was terminated on our notice in 1866, throwing us 
back as Great I^ritain contended, and as we have admitted, 
on the Treaty of 1818. Then came the Treaty of 187 1, giv- 
ing us the i;ight to fish in-shore under certain limitations, 



THE FISHERIES DISPUTE. 4I 

and this, after the rejection by the Senate on February 2, 
1875, of another reciprocity treaty, was terminated by our 
act on July i, 1885, bringing again into operation the fish- 
eries article of 1818. 

Last came the Treaty of Washington, with its mutual 
grants in regard to the fisheries and trade, and the memora- 
ble Article XXII., commencing, " Inasmuch as it is asserted 
by the government of Her Britannic Majesty that the 
privileges accorded to the citizens of the United States, un- 
der Article XVIII. of this treaty, are of greater value than 
those accorded by Articles XIX. and XXI. of this treaty to 
the subjects of Her Britannic Majesty, and this assertion is 
not admitted by the Government of the United States, it 
is further agreed," etc., and then followed the provision for 
commissioners, not to ascertain whether there was in fact 
an inequality of advantage, and if so which side had re- 
ceived the largest advantage, and to what amount, and 
which should pay the other for the difiference, but to de- 
termine the amount of any compensation which in their 
opinion ought to be paid by the Government of the United 
States to the government of Her Britannic Majesty in re- 
turn for the privileges accorded to the citizens of the United 
States under Article XVIII. 

The advantage gained by Great Britain in this form of 
submission to the commissioners was emphasized by the 
joint instruction to the Count Beust, by whom, as the Aus- 
trian Ambassador at London, the umpire was to be selected, 
that the appointment of the Minister of Belgium at Wash- 
ington would be acceptable, not simply to the government 
of Great Britain, but to that of the United States. Why it 
had become acceptable to President Grant and his Cabinet 
has never been explained : but to one suggestion of Mr. 
Blaine, by way of explanation and apology, made in his in- 
teresting sketch of the fisheries dispute from 181 8 to 1878, 
I may properly allude in passing. Mr. Blaine intimates 
that it was realized at Washington " that Count Von 
Beust, the Austrian Ambassador, might select some one 



42 THE FISHERIES DISPUTE. 

even more objectionable than M. Delfosse, if that were 
possible." * 

From my official and personal relations at Vienna with 
the late Chancellor Von Beust I feel bound to say that this 
extraordinary and dishonoring suggestion does the greatest 
injustice to the character and fame of that illustrious states- 
man, whose eminent success, aided by the Count Andrassy 
at Pesth, in restoring the harmony of Austria and Hungary, 
and in introducing into the government of the dual empire 
changes in the direction of freedom, education, and national 
progress, was not a little influenced by his careful study of 
American principles and American institutions, and entitles 
his memory to the sincere regard of the American people. 

The suggestion that Count Beust, as the Austro-Hunga- 
rian Ambassador in London, charged with the appoint- 
ment of a proper person as umpire in the Halifax award, 
would of his own motion have selected a diplomatic agent, 
to whom the United States had formally objected, and whom 
Earl de Grey had declined to name as one supposed to be 
incapacitated by the treaty arrangements between Belgium 
and Great Britain, is one entirely inconsistent, not only 
with the Count's character and with his friendship to Amer- 
ica, as shown in the Naturalization Treaty, but especially 
with his regard for diplomatic propriety and his own fame. 
So great a breach of faith toward a trustful government 
would have been condemned by every court in Europe, 
and by honorable diplomatists throughout the world. 

The award by the Belgium minister of $5,500,000, in 
addition to the duties remitted by us estimated at $4,200,- 
000, in the face of the unimpeachable evidence cited b}' Mr. 
Secretary Evarts in his despatch of September 27, 1878, 
seems to have been regarded in England as a signal tri- 
umph for British and Canadian diplomacy. The prompt 
payment of that award was approved by the American 
people notwithstanding the rule laid down by Vattel 
that " if the arbitrators by pronouncing a sentence evidently 
* Twenty Years of Congress, II., 630. 



THE FISHERIES DISPUTE. 43 

unjust and unreasonable should forfeit the character with 
which they are invested, their judgment would deserve no 
attention ; " but that singular award and the steps which 
led to it ma)' help to explain American reluctance, should 
any be exhibited, to further arbitration on the fisheries 
question. 

The Effect of War on Treaties. 

Having referred to the facts which show the intention of 
the high contracting parties in 1783, that the article on the 
fisheries in the Treaty of Separation reciting their division 
between the two empires should not be temporary and trans- 
ient, but fundamental, permanent, and enduring, and that 
the acceptance of that article by the British cabinet was a 
condition of the peace — facts long since established on the 
American side by the testimony of our own archives, and 
now confirmed by the letters of the English negotiators 
gathered after a hundred years from the State Paper Office 
of London — it may be proper to refer to the simple rule of 
law, which should determine the question whether that ar- 
ticle could be abrogated, as the British commissioners con- 
tended, by the War of .1812. 

That rule is thus stated in Field's International Code : 



Treaties Unaffected by War. 

War does not affect the compacts of a nation except when so pro- 
vided in such contracts ; and except also that executory stipulations 
in a special compact between belligerents, which by their nature arc 
applicable only in time of peace, are suspended during the war. 

Wharton says : 

Treaties stipulating for a permanent arrangement of territorial and 
other national rights arc at the most suspended during war, and re- 
vive at peace, unless they are waived by the parties, or new and repug- 
nant stipulations are made (II. Wharton's International Law Digest, 
Chapter VI., Sec. 135). 



44 THE FISHERIES DISPUTE. 

A large and looser rule was contended for in Society vs. 
New Haven in the Supreme Court of the United States 
in 1823, and the Court was asked to recognize the doctrine 
urged at the bar, that treaties become extinguished ipso 
facto by a war between two governments. But the Court 
said, by Justice Washington : 

Whatever may be the latitude of doctrine laid down by element- 
ary writers on the law of nations, dealing in general terms in relation 
to the subject, we are satisfied the doctrine contended for is not uni- 
versally true (VIII. Wheaton, 494). 

In an English case arising under the Treaty of 1794, the 
principle was distinctly recognized that they were to deter- 
mine, by reasonable construction, tJic intention of tJie treaty 
(Sutton vs. Sutton, i Rus. and M., 663). The question was, 
whether American subjects who hold land in England were 
to be considered, in respect of such lands, as aliens or sub- 
jects of Great Britain, or whether the War of 18 12 had de- 
termined the Treaty of 1794. Sir J. Leach, the Master of 
the Rolls, said : "The privileges of nations being recipro- 
cally good, not only to actual possession of land, but to their 
heirs and assigns, it is a reasonable Construction that it was 
the intention of the treaty that the operation of the treaty 
should be permanent, and not depend upon the continuance 
of a state of peace." 

It is mentioned in Wharton's Digest, III. § 303, that 
this decree was not appealed from. The last edition of 
Wharton (1886) contains a valuable summary of the princi- 
ples and cases bearing on the fishery questions under the 
Treaties of 1783 and 1818 (III., pp. 38-57). 

Mr. Blaine, in his "Twenty Years of Congress" (II., p. 
617), alluded to 

The rather curious fact, apparently unknown or unnoticed by the 
negotiators of 18 14, that as late as 1768 the law officers of the crown, 
under the last ministry of Lord Chatham (to whom was referred the 



THE FISHERIES DISPUTE. 45 

Treaty of 1686 with France, containing certain stipulations in relation 
to the Newfoundland fisheries), gave as their opinion that such clauses 
were permanent in their character, and that so far the treaty was valid, 
notwithstanding subsequent war. 



Mr. Blaine has kindly referred me to these cases in 
Chalmer's opinions of eminent lawyers. 

The question to which they relate arose upon the fifth 
and sixth articles of the Treaty of Peace and Neutrality in 
America, concluded between England and France, Novem- 
ber 16, 1686, touching the neutral rights, conditions, and 
disabilities of the inhabitants of each kingdom as regards 
trade and fishing in the places possessed by them in Amer- 
ica. On April 7, 1753, the attorney and solicitor-general, 
Ryder and Murray, advised the Government of their opin- 
ion, without statement of their reasons, that " the said treaty 
is now in force." On February 12, 1765, the attorney and 
solicitor-general, Norton and De Grey, announced as their 
opinion, without statement of their reasons, " that the said 
treaty was not in force.'' On February 15, 1765, Sir 
James Marriot, the advocate-general, gave his opinion that 
the Treaty of Neutrality was a subsisting treaty ; and this 
view is sustained in a very careful and elaborate argu- 
ment, by broad and just considerations of good faith and 
enlightened civilization, worthy of the noblest statesman- 
ship and diplomacy of England. 

His opinion showed that the treaties are in their nature 
contracts, and are to be argued on the footing of obligations 
which arise from contract expressed or necessarily implied, 
and that the question of deciding the validity and exist- 
ence of a public treaty is to be governed by the same 
rules and reasonings applicable to other contracts. Touch- 
ing their revival, from the very nature of the cause 
claiming to operate which had suspended the force of the 
convention, especially if the objects of good faith are con- 
cerned in the revival. Sir James alluded to the fact that the 
decision of such questions, in their age of negotiation. 



46 THE FISHERIES DISPUTE. 

must dififer from the practices of barbarous nations with but 
partial notions of modern civib'zation ; and that " in the 
present age, as war is commenced on different principles 
from the wars of antiquity, so it ends with different princi- 
ples, in both more to the honor of humanity." 

He showed that the public law of Europe abhors the 
spirit of ancient wars, and that war in these times is con- 
sidered but as an appeal to the rest of the powers of Europe, 
and is but a temporary exertion of force to decide a point 
of interest which no human tribunal could determine, and 
he said : 

Thus it is, in its nature, but a suspense of the other rights not in 
contest, which existed between the belhgerent powers reciprocally, be- 
fore the war; when we reason, therefore, that a war being ended, the 
public reciprocal rights and obligations, not specially abrogated, but 
suspended, eme^'ge, and acquire their former vigor and activity, the 
reasoning of it is just ; is so, because it is consistent with the relations, 
and arises out of the 7iature of things. We need not urge the neces- 
sity of particular stipulations, to revive such obligations ; it is the very 
essence and necessary idea of reconciliation, implied of course, if not 
declared, in every definitive treaty of pacification, that the commer- 
cial and friendly intercourse of the contracting powers is replaced in 
its former state. 

Such is the force of those exalted principles of pub- 
lic law which, in these happier ages of human society, restore their 
proper empire over the minds of men to good sense and good faith, 
with a force superior to the passions or prejudices of nations long 
accustomed to be rivals ; and such I conceive to be the law of Europe 
in its present state, which, whenever these doctrines, founded in rea- 
son and humanity, shall cease to prevail, will fall back into all the 
gloom of a barbarous condition of ignorance and despotism. 

The war between England and France, which followed the revolu- 
tion, suspended the commercial treaty of 1686, called the Treaty of 
Neutrality. The Treaty of Peace, concluded atRyswick, 1697, takes no 
notice of it nominally, but revives it, by the general quality of a treaty, 
putting an end to the war by the strongest terms of a general compre- 
hension, restoring the commerce of the two nations, reciprocally, to 
the state in which it existed before the war. . . 

I have the honor to submit that the Treaty of 1686 may be insisted 
upon as a subsisting treaty, not only because it is revived, by a strong 



THE FISHERIES DISPUTE. 47 

implication of words and facts, but for that it may be understood to 
subsist because it never was abrogated.* 

Tlie exalted principles of public law declared in that 
masterly opinion of the Advocate-General in 17(^5. confirm- 
atory of the opinion of Attorney- General Ryder and So- 
licitor-General Murray in 1753, that the fisheries article in 
the French and English treaty of 1686, while suspended by 
war, had been restored by the peace, apply in still greater 
force to the fisheries article in the Anglo-American Treaty 
of 1783, which was not only a treaty of peace but of sepa- 
ration, intended to settle definitely and permanently the 
boundaries, and the rights and liberties of the two nations 
in what had before been held by them in common. The 
War of 1812 suspended the exercise of the rights and liber- 
ties secured by the fisheries clause ; and when the war was 
terminated by the Treaty of Ghent, that treaty, while taking 
no notice of the fisheries clause of 1783 nominally, " revived 
it by the general quality of a treaty putting an end to the 
war, and restoring the commerce of the two nations recip- 
rocally to the state in which it existed before the war." 
Whether or not the weighty argument of Sir James Marriott 
was known to the British Commissioners at Ghent or at 
London, it will not be overlooked by Americans or by 
Englishmen in considering the question of the fisheries 
under the interesting circumstances of to-day. 

Nor will they forget that the true doctrine of the effect 
of war on treaties, so clearly stated by Sir James in 1765, 
was recognized in the Parliamentary debates on the Peace 
of Amiens in 1802, between Great Britain, France, Spain, 
and Holland, by the great jurists of England, whose opin- 
ions seem to have been strangely ignored by the British 
Government, in its efforts to prove that our fishery rights 

* Vol. II., pp. 344-355, of Opinions of Eminent Lawyers on Vari- 
ous Points of English Jurisprudence, chiefly Concerning the Colonies, 
Fisheries, and Commerce of Great Britain. By George Chalmers. 
London : Reed & Hunter, 1814. 



48 THE FISHERIES DISPUTE. 

under the Treaty of 1783 had been hopelessly annulled by 
the war of 1812. 

In that Parliamentary debate, Lord Auckland said that 
it had been intimated by some that by the non-renewal of 
the Treaty of 1786 their right to cut logwood might be dis- 
puted, and in answer to that intimation Lord Auckland 
said : 

He had looked into the works of the first publicists on these sub- 
jects, and had corrected himself in a mistake still prevalent in the 
minds of many who state in an unqualified sense that all treaties be- 
tween nations are annulled by war, and must be specially renewed if 
meant to be enforced on the return of peace. . . . But compacts 
not interrupted by the cause and eftect of hostilities, such as the regu- 
lated exercise of a fishery on the respective coasts of the belligerent 
powers . . . are certainly not destroyed or injured by war. 

The Earl of Carnarvon said in the same debate : 

War does not abrogate any right or interfere with the right, though 
it does with the exercise, but such as it professes to litigate by war. 

Lord EUenborough, Chief Justice of the Court of King's 
Bench, 

felt surprise that the non-renewal of treaties should have been urged 
as a serious objection to the definite treaty. . . . He was aston- 
ished to hear men of talent argue that the public law of Europe was a 
dead letter, because certain treaties were not renewed. 

Lord Eldon, then High Chancellor of England ; Lord 
Hawkesbury ; the Earl of Liverpool, the Secretary of State 
for Foreign Affairs and late Prime Minister of England ; 
Mr. Addington (Lord Sidmouth) ; Mr. Pitt, and Mr. Fox, 
all supported the same principles. "''' 

* The opinions are referred to by Mr. John Ouincy Adams in " The 
Fisheries and the Mississippi," p. 195, citing 23 Hansard, 1147, and 
are more fully quoted by Mr. C. A. Rodnay in his opinion on the fish- 
eries, filed with, and endorsed by. President Monroe, November 4, 
1818, cited in III. Wharton's International Digest, 1886, Sec. 303, pp. 
44 and 45, from the Monroe MSS. in the Department of State. 



THE FISIIKRIES DISPUTE. 49 



The Governor-General of Canada. 

It may be regarded as a fortunate circumstance at this 
juncture tiiat the Governor-General of Canada is a grand- 
son of the great EngHsh Minister by whom our Revolution- 
ary War was happily ended, on terms so fair and reasonable 
as forever to entitle the memory of Shelburne to the highest 
honor in both countries. His Excellency is familiar with 
the historic sketch by his brother, Lord Edmond Fitzmau- 
rice, of the conduct of the peace negotiations by that states- 
man, the story of whose connection therewith has been of 
signal service in correcting the errors into which American 
historians had been misled, in regard to the secret devices 
of France and Spain to deprive us of the boundaries and 
the fisheries ; to the secret mission of Rayneval to England 
to secure Shelburne's adhesion to their scheme ; and to the 
great service rendered to the Republic by Benjamin 
Vaughan in hastening to Bowood at the request of Jay 
to counteract the designs of Rayneval, and to assist in en- 
gaging for the American Commissioners the confidence of 
Shelburne and a fair share of American rights. 

Lord Lansdowne knows that at that time no peace was 
possible without the full recognition of our right to the 
fisheries. His Excellency without doubt values aright the 
inestimable service rendered by Shelburne to England, 
America, and the world, at the expense of a brief unpop- 
ularity. He will doubtless be the last person in Canada to 
wish to disturb the international friendship to which his 
illustrious ancestor so pre-eminently contributed, and which, 
as regards the fisheries, would probably never have been 
disturbed had the third article been allowed to stand as Shel- 
burne approved it ; and perhaps the surest guarantee for our 
mutual good-will will be found in a return to the terms of 
the treaty so conspicuously identified with his fame. 



50 THE FISHERIES DISPUTE. 



Concluding Suggestions. 

It is not at all to be presumed that Lord Salisburj^ to 
whom, I may say in passing that we are all indebted for the 
ready courtesy with which he has permitted us to gather 
from the State-Paper Office of London the most interesting 
and important papers bearing on the peace negotiations, 
papers whose value we appreciate anew as we observe their 
bearing on the questions of to-day — it is not to be presumed 
that Lord Salisbury will decline to look at the rights we 
claim, not as privileges conceded to colonists, but as ancient 
rights won for Great Britain by American valour, of which 
we retained our share on the division of the empire, and 
of wdiich, by well-established rules, we lost not an iota by 
the war. Nor is it to be presumed that Lord Salisbury 
will submit a question that so nearly concerns the honour 
and the interest of the British people to the decision of the 
Canadians, whose unwisdom has strained our relations, and 
who, even since the Halifax award, are not content ; or that 
Lord Salisbury will on this occasion adopt the principle or 
the method which Mr. Greville attributes to Lord Palmers- 
ton, when he says that Lord Palmerston, in speaking of 
Lord Ashburton and his treaty with Webster, remarked : 
" We are all right, and the Americans all \vrong. Never 
give up anything ; insist on having the thing settled your 
own way, and if they won't consent, let it remain unsettled." 

In view of the rights of our fishermen we cannot afford 
to let this thing remain unsettled ; and it would seem as if 
the Canadians, unchecked by the Home Government, had 
put it in our power to end the grievances to which our fish- 
ermen are subjected. 

In case Congress shall be clear, as the Retaliation Bill 
would seem to indicate, that Great Britain has violated Ar- 
ticle I. of the Treaty of i8i8 ; and that the United States is 
therefore entitled, under the rule stated by Madison and 
established by her own precedent, to abrogate that article, 



THE FISHERIES DISPUTE. 5 1 

and to fall back upon the original rights and liberties of 
the United States in the Newfoundland fisheries at the 
division of the empire in 1783,35 defined by Article III. 
of the Treaty of Peace. Congress may be disposed to 
consider the expediency of embodying their views on this 
point in the Retaliation Act, or in a separate act, so that 
the future negotiations for an amicable adjustment of the 
pending difficulties may not be hampered nor thwarted by 
the pretence, heretofore made, that the rights claimed by our 
Government for American fishermen are denied to them by 
the third article of the Treaty of i8i-8, which tlie British 
have themselves violated. 

Should this conclusion be approved by Congress, it 
would almost follow the preamble and enacting clause of 
the Act abrogating the treaties with France (July 7, 1798) 
should it declare that, inasmuch as the third article has been 
repeatedly violated on the part of the British Government, 
and the just claims of the United States for reparation of 
the injuries so committed have been refused, and their at- 
tempts to negotiate an amicable settlement of the same have 
failed, and under the authority of the British Government 
a course of treatment is still pursued against the fishermen 
of the United States, infracting the said article and hostile 
to the rights of a free and independent nation, it is enacted 
by Congress that the United States are of right freed and 
exonerated from the stipulations of the said article, and 
that the same shall not henceforth be regarded as legally ob- 
ligatory on the Government or citizens of the United States. 

While Congress may approve the propriety and neces- 
sity of such an act, it may at the same time deem it proper 
to postpone the taking effect of such an enactment, so long 
as a reasonable hope may be entertained that Great Britain 
will voluntarily do full and ample justice to our fishermen ; 
and Congress may deem it wise to leave it to the President, 
as in the Retaliation Bill, to give it effect in his discretion. 

It is desirable that not only Great Britain, but all the 
world, should see that, while resolved to maintain our rights 



52 THE FISHERIES DISPUTE. 

and protect our fishermen, and to end at once and forever 
the petty vexations to which they have been subjected and 
which now threaten the international peace, we sincerely 
desire, if possible, to preserve and improve our friendly rela- 
tions with Great Britain and her dependencies on this con- 
tinent. 

Recalling the prominent part so ably borne by you at 
Geneva in the tribunal which, to the admiration of Europe, 
closed amicably the Alabama question, we may hail as of 
good omen your presence in the Senate at this time, when 
England and America both desire the closing of the fish- 
eries dispute : and trusting that we may soon have an early 
and satisfactory end of this business on the basis of the 
original rights of both countries, 

I am, very respectfully and faithfully yours, 

John Jay. 
191 Second Avenue, New York, 
February 22, 1887. 



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